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Consent found in context, court rules in TCPA case

In dismissing a TCPA claim, a Washington federal court found that the context in which the plaintiff provided his cell phone number constituted sufficient consent to receive text messages under the statute.

Eric Aderhold registered to become a member of car2go, a one-way local car-sharing service. He filled out a form on the company’s Web site which required him to input personal information like his address, cell number, and e-mail address. He was also required to review car2go’s Terms and Conditions, Trip Process, and Privacy Policy and check boxes confirming his acceptance of the three documents.

Within “seconds” of submitting his registration form, Aderhold received a text message and an e-mail from car2go. The text consisted of two sentences: “Please enter your car2go activation code 145858 into the emailed link. We look forward to welcoming you to car2go.”

Claiming that the text message violated the TCPA, Aderhold filed a putative class action complaint. He said that despite providing his cellphone number as part of the registration process, he did not give his prior express consent to receive the text message.

Taking a “common sense” approach to interpretation of the statute, Judge Richard A. Jones disagreed. He dismissed the TCPA claim and found that consent may be found based from the context of the transaction in which a consumer provides a cellular number, a conclusion also reached by federal courts in California.

In Aderhold’s case, the various documents he reviewed and accepted as part of the registration process notified him that car2go “may confirm a registration via instant text message,” while the privacy policy noted that the company may store and use the personal information collected. Aderhold checked all three boxes confirming that he reviewed and accepted the documents, the court said.

“The text message that Mr. Aderhold receives falls squarely within the scope of these disclosures,” Judge Jones wrote. “Although he arguably did not explicitly grant permission for car2go to contact him by text message regarding his registration form, no reasonable person in his shoes could have doubted that car2go would contact him in some manner. That car2go chose a text message (in addition to an email) is not significant. Mr. Aderhold clearly and unmistakably consented to being contacted about his registration for car2go.”

Even if car2go made no disclosures at all about the purposes for which it planned to use the plaintiff’s number, the court determined that “it defies logic to contend that he did not consent to be contacted regarding his membership application.”

Judge Jones refused to hold that express consent must be “affirmatively stated” as argued by Aderhold, as the TCPA “does not require specific consent to the medium by which a company contacts a consumer.”

“When people provide their telephone numbers in commercial transactions, it would be odd to imagine that they do not consent to being contacted for purposes of completing that transaction,” the court wrote.

Why it matters: Judge Jones emphasized a “common sense” approach to TCPA interpretation. Although he noted that he was not ruling on what prior express consent means in every case, the judge asked, “Could a person who provided a telephone number to a delivery service seriously contend that she had not consented to be telephoned by the service to inform her that her package was en route? Could a person who provided a telephone number to a mechanic claim that she did not consent to be called (or texted) when her car was repaired?” Under the plaintiff’s theory, if the delivery service and the mechanic used an autodialer, they would break the law. The court is confident that Congress did not intend that result when it passed the TCPA.”